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20 Unlocking the Potential of Parents in the Contingent Workforce | Custom Research Powered by SIA |© Crain Communications Inc | All Rights Reserved | September 2022 SECTION 4 Spotlight on Co-Employment Co-employment, or joint employment, is when two employers are jointly and individually responsible for compliance with the duties or obligations of an employer with respect to the work performed by a single individual (see full definition in SIA's Global Lexicon here). Will including contingent workers in a corporate hiring manager's efforts to support and retain parents and caregivers increase the risk of being found to be a co-employer? Below is discussion of several dimensions of inclusion and support as they relate to parents, based on input from Farrah Rifelj, partner, and Maryelena Zaccardelli, senior counsel, at Michael Best & Friedrich LLP. As an initial point, they stress that employers must first analyze where they currently fall on the spectrum of co-employment. In many contingent labor settings, co-employment exists from inception, and taking steps toward inclusion and retention does not change anything. If an employee is already a co-employee, providing some resources for the sake of inclusion and retention adds no risk. Moreover, co-employment, in and of itself, is not unlawful and should not be seen as a "risk." Of course, buyers should have a sense of whether they are in a co-employment relationship. Any co-employment assessment should be based on the applicable tests for employee status and should include a review of all aspects of the contingent worker program. Most tests for co-employment focus on direction/control of the day-to-day activities of the workers, but also include consideration of the location of the work and who supplies the tools or equipment used. Employee resource groups: Many companies offer groups that provide networking and support for employees — often tied to specific demographics or interests, such as a group for parents, for all or certain diverse or underrepresented people, or for caregivers. Whether it makes sense for contingent workers to be allowed to join these groups or attend their events will depend on the situation. For example, if a caregiver group hosts discussions about company benefit programs that are unavailable to contingent workers, encouraging contingent workers to join may be counterproductive even if under the circumstances there is no increased risk of co-employment. And for short-term contingent workers, it may make more sense for the staffing supplier to offer this type of ongoing support. However, some companies find that allowing longer-term contingent workers in these groups — sometimes removing the word "employee" from the description — is a good way to support them as they balance their home responsibilities with their work on the employer's projects. Career development and advice: Although managers may talk informally with contingent workers about career goals, most companies have the staffing supplier handle more formal conversations about performance and goals. This can be due to contract terms with staffing suppliers as well as co-employment concerns. Again, however, in most cases co-employment exists. Talking with workers about career plans may be an indicator of control, but if the company is already directing the worker's activities all day anyway, adding a periodic conversation about career planning will not have any practical impact. "If you value the worker and want to keep them, act like it – treat them the way you would want to be treated. That is lawful and a good idea in all circumstances," Zaccardelli said. Employee recognition and bonuses: Programs designed to reward employees for outstanding performance often exclude contingent workers, though some companies make exceptions if the contingent workers are part of a team that wins the award. It's worth exploring all the possible effects of these awards. For example, cash bonuses — even if they are paid by the staffing supplier — can affect overtime pay calculations. Note: This document is provided solely for the purposes of information and should not be considered legal advice. It is always recommended to seek the advice of qualified legal counsel before acting on the information contained in this report. Spotlight on Co-Employment